City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1844 Appeals Court CITY OF WORCESTER vs. CIVIL SERVICE COMMISSION & another.[1] No. 12-P-1844. Suffolk. December 6, 2013. – February 26, 2015. Present: Fecteau, Sullivan, & Maldonado, JJ. Practice, Civil, Review respecting civil service. Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review. Administrative Law, Hearing, Judicial review. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Statute, Construction. Civil action commenced in the Superior Court Department on October 22, 2010. The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings. Leo J. Peloquin for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission. Meghan C. Cooper for Leon Dykas. MALDONADO, J. The city of Worcester (city) appeals from a judgment of the Superior Court upholding the determination of the Civil Service Commission (commission) that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to G. L. c. 31, § 41. The city contends that because § 41 does not explicitly establish a statutory testimonial privilege and because police department rules and regulations require officers to provide truthful testimony when requested, the commission exceeded its authority and improperly intruded upon the city’s right to enforce its rules of conduct. We conclude that the commission’s determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee’s failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference. Therefore, we affirm. Factual background. The relevant facts drawn from the administrative record are undisputed. Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department). In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the department.[2] Dykas cooperated with the department’s internal investigation and attended an investigatory interview at the department’s bureau of professional standards (BOPS) as ordered. Following review of the BOPS report and a transcript of Dykas’s interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of […]